Tag Archives: Erie

The DC Circuit’s Abbas decision, holding that the DC anti-SLAPP statute does not apply in a federal court diversity case, is beginning to have real-world consequences for litigants in the District of Columbia. Since the April 2015 decision, at least two libel cases have been filed in DC federal court. In both cases, the defendants are not able to move under the DC anti-SLAPP statute. And for defendants sued in DC Superior Court – who are able to remove the case to federal court because of diversity jurisdiction – the Abbas decision leaves them with a difficult decision. Since the …

I attended the Abbas v. Foreign Policy Group argument at the DC Circuit last week. (You can listen to the argument here). Here are my impressions. I agree with Politico that it seems unlikely that the Circuit will reverse the district court’s dismissal of the complaint as none of the three members of the panel quarreled with the district court’s reasoning. Rather, the central question in the appeal now appears to be whether the DC Circuit needs to conclusively decide whether the DC anti-SLAPP statute applies in federal court (the “Erie” issue) or whether it could sidestep that issue and …

The DC Circuit’s decision in Farah v. Esquire Magazine turned out to be a dud from an anti-SLAPP perspective. The court affirmed the district court’s dismissal of Farah’s Complaint, but did so under Rule 12(b)(6), thus mooting any consideration of arguments made under the DC anti-SLAPP act. The opinion is not a great surprise. In its brief to the DC Circuit, Esquire suggested that, because the Complaint was also dismissed under Rule 12(b)(6), the district court’s decision could be affirmed on this alternative basis. And the questions at oral argument (link here) did not focus on the anti-SLAPP act. Nevertheless, …

I previously blogged about the libel suit brought by Sheldon Adelson against the National Jewish Democratic Council and others, alleging that an article they published, which reported that Adelson had personally approved of prostitution in his casinos, and urged then-Presidential candidate Mitt Romney to reject his “dirty money,” was false and defamatory. The defendants initially moved to dismiss the suit under Rule 12(b)(6) and the DC anti-SLAPP act. At the Court’s request, the parties then briefed whether the suit would survive under Nevada’s anti-SLAPP statute. On September 30, the Court dismissed the suit, holding that it failed to state a claim …

The DC Circuit has announced that the Farah v. Esquire appeal will be heard on October 3, 2013 before Circuit Judges Rogers and Brown and Senior Circuit Judge Williams. In a separate post, I will summarize the background facts giving rise to the case, the proceedings in the district court and the issues on appeal. For now, however, I thought I would take a quick look at prior defamation/libel/First Amendment decisions involving these judges. As explained below, for two of the judges on the panel, there will be a sense of déjà vu when the argument begins on October 3.

In the three plus years since the DC anti-SLAPP statute first became effective, parties have argued that it violates the Home Rule, cannot be used retroactively, cannot be applied in federal court, and does not apply to motions made more than 45 days after service. Now, in a galaxy far, far away (well, actually New York), a high-profile plaintiff is asserting a new argument: that the statute violates the Seventh Amendment.

The squabble between the former rocker and well-known liberal MSNBC host spilled over into two courts. (For all the gory details, see my prior posts here and here and here and here and here and here and here and here and here and here).

On the same day that the DC Circuit issued its decision in Sherrod v. Breitbart, which avoided deciding the “Erie” question by resolving the case on timeliness grounds, another DC federal court judge held that the DC anti-SLAPP statute can be applied in federal court, and granted the defendants’ anti-SLAPP motion. (For prior posts on the background and arguments in the Boley case, see here and here).

This morning, the DC Circuit issued a short opinion in which it affirmed the District Court’s ruling in Sherrod v. Breitbart, which had denied the defendants’ anti-SLAPP motion. Because the District Court’s ruling was not a final judgment ending the action, the DC Circuit first considered whether it even had jurisdiction to hear the appeal. After canvassing decisions from other circuits and a “terse, unpublished order” from the DC Court of Appeals, the court sidestepped the question because it found that its precedent on another issue completely resolved the case. In other words, the court assumed (without deciding) that it had …

In response to the anti-SLAPP motion filed by The Atlantic and its correspondent, George Boley has filed his opposition brief and the defendants, in turn, have filed their reply brief. The briefs are relatively routine for this type of libel case, with Boley arguing that: he has adequately plead facts showing actual malice (and the defendants arguing that he has not); defendants are not entitled to the fair report privilege because some of the challenged statements were not based on official records (while they argue they were all based on court filings or official reports); the DC anti-SLAPP statute does …

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